Office of the Attorney General
State of Texas

Re: Whether the State Board for Educator
Certification is required to use the State Office of
Administrative Hearings to conduct all administra-tive hearings in contested cases before the agency
under chapter 2001, Government Code (ID# 39583)

Dear Mr. Littleton:

You have asked this office whether the State Board for Educator Certification ("the SBEC")
is required to use the State Office of Administrative Hearings ("SOAH") to conduct all hearings in
contested cases under chapter 2001 of the Government Code. In our view, it is not, so long as it
employs in-house hearing officers solely for that purpose.

The SBEC was established by the Legislature in 1995 to regulate the certification of public
school educators. Its purpose is set forth in section 21.031(a) of the Education Code:

The State Board for Educator Certification is established to recognize public
school educators as professionals and to grant educators the authority to
govern the standards of their profession. The board shall regulate and
oversee all aspects of the certification, continuing education, and standards
of conduct of public school educators.

Prior to the establishment of the SBEC, its functions, particularly including its disciplinary
function, were performed by the State Board of Education and the Commissioner of Education (the
"commissioner"). The power of the commissioner to suspend or cancel a teacher's certificate, as
well as the holder of the certificate's right to notice and an opportunity to be heard, were detailed in
section 13.046 of the Education Code, which read in relevant part:

(a) Any teacher's certificate issued under the provisions of this code or
under any previous statute relating to the certification of teachers may be
suspended or canceled by the state commissioner of education [for a series
of listed causes].

(b) Before any certificate shall be suspended or canceled the holder shall
be notified and shall have an opportunity to be heard. . . .

Chapter 13 of the Texas Education Code was repealed as part of the series of educational
reforms enacted by Senate Bill 1 in 1995. Authority to propose rules that "provide for disciplinary
proceedings, including the suspension or revocation of an educator certificate, as provided by
Chapter 2001, Government Code" has been transferred to the SBEC by section 21.041(b)(7) of the
Education Code. By November 1, 1997, the SBEC "shall propose rules relating to educator
certification, including alternate certification, educator appraisals, and certification sanctions, and
other rules the board is required to propose under Subchapter B, Chapter 21." Until the effective
date of such rules, the rules adopted by the State Board of Education under former Subchapter B,
Chapter 13 remain in effect. Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 63(h), 1995 Tex. Gen.
Laws 2207, 2500 (effective May 30, 1995). Pursuant to section 63(h) of Senate Bill 1, the SBEC
adopted chapter 19, section 230.901 of the Texas Administrative Code, which provides in relevant
part:

The rules subject to this subchapter are to be construed to retain with the
commissioner all authority related to administrative hearings involving
educator certification and professional practices and standards of conduct
under Chapter 137, Subchapter T of this title (relating to Reprimand,
Suspension, Cancellation, and Reinstatement of Certificates), pending the
adoption of rules by the SBEC to assume those administrative hearings.
Until such adoption, any such hearings shall be conducted by the
commissioner in accordance with procedural rules adopted for hearings
before the commissioner or TEA. The commissioner or his designee shall
enter a final order, which may be appealed in accordance with the Texas
Education Code (TEC), § 7.057.

19 T.A.C. § 230.901(c). The effect of this rule is to continue the previous regime of disciplinary
proceedings until such time as the SBEC has promulgated its rules in this regard.

At present, as you inform us, administrative proceedings considering sanctions against
certified educators are conducted by hearings officers employed by the Commissioner of Education.
To afford an opportunity to be heard under former section 13.046 of the Education Code, as you
inform us, the commissioner, through the Texas Education Agency ("TEA"), employed in-house
hearings officers. The commissioner was employing such hearings officers at the time SOAH came
into existence in 1991. SOAH's charge is set forth in chapter 2003 of the Government Code:

The office shall conduct all administrative hearings in contested cases under
Chapter 2001 [of the Government Code] that are before a state agency that
does not employ an individual whose only duty is to preside as a hearings
officerover matters related to contested cases before the agency.

Gov't Code § 2003.021(b) (emphasis added).

Because the commissioner employed full-time hearings officers to preside over the disciplinary
proceedings, the State Board of Education was exempt from the strictures of Government Code
section 2003.021(b).

SBEC is currently in the process of developing the rules under which it will assume the
administrative hearings. As part of your development of the rules mandated by the legislature in
Senate Bill 1, you wish to know whether the SBEC, like the commissioner, may employ in-house
hearings officers to conduct such proceedings, or whether you must use SOAH for all such purposes.

You note that, when section 2003.021(b) of the Government Code came into effect, the
SBEC did not exist, and that consequently, it did not "employ an individual whose only duty [was]
to preside as a hearings officer over matters related to contested cases" before it. But this argument
is, as you point out, a double-edged sword, since it is also the case that at the time SOAH came into
existence the SBEC, because it did not exist, had no "administrative hearings in contested cases
under Chapter 2001" before it.

We do not think the date at which a state agency came into existence is determinative for the
purposes of Government Code section 2003.021(b). Had the legislature wished to require that all
state agencies created after the effective date of the SOAH legislation use SOAH employees for all
contested cases, it could have made such a requirement explicit. In our view, two questions must
be answered in an analysis of whether the exception or the rule of section 2003.021(b) applies. First,
does the agency in question have the authority to employ in-house hearings officers whose sole duty
is to preside over contested cases? If not, it must use SOAH for any such proceedings. Second, if
the agency has authority to employ such in-house hearings officers, has is elected to do so? If not,
again it must use SOAH for all contested cases.

In the SBEC's case, the first question may be answered in the affirmative. Since the SBEC
has been charged by the legislature to "provide for disciplinary proceedings, including the suspension
or revocation of an educator certificate," Educ. Code § 21.041(b)(7), it has the authority necessary
to carry out that charge, implicit in which would be the power to hire employees to do so.

The second question is therefore whether the agency has chosen to employ in-house hearings
officers whose sole duty is to preside over such cases. It would appear that the SBEC has not chosen
as yet between hiring such employees or employing SOAH, except insofar as 19 T.A.C. section
230.901(c) continues during the transition the commissioner's practice of using in-house hearings
officers. Therefore, the SBEC has the choice of employing in-house hearings officers or using
SOAH employees.

We caution that either of these choices carries further implications. Should the SBEC decide
to hire personnel as in-house hearings officers, such persons' sole duty must be the hearing of
contested cases in order to escape the strictures of Government Code section 2003.021(b). On the
other hand, should the SBEC prefer that SOAH conduct its contested cases, Attorney General
Opinion DM-231 (1993) holds that the SBEC may not make its own findings of fact and conclusions
of law. While either choice has consequences, the choice is the SBEC's to make.

S U M M A R Y

The State Board of Educator Certification has the choice of either
employing in-house hearings officers whose sole duty is to hear contested
cases to conduct such proceedings, or using the hearings officers provided by
the State Office of Administrative Hearings.